Unofficial Opinion 96-20

October 25, 1996

To:

District Attorney Stone Mountain Judicial Circuit

Re:

Pursuant to an act passed in 1996, rape and aggravated sodomy are no longer included within the crimes for which the mandatory minimum term of imprisonment is ten years; for these offenses, the mandatory term is one year in prison. Life without parole remains the mandatory term for repeat offenders.

You have requested my opinion regarding what sentences are currently authorized under Georgia law for the offenses of rape and aggravated sodomy. Prior to the 1994 legislative session, the sentences for rape and aggravated sodomy were set forth in Title 16 as follows:

Rape -- "A person convicted of the offense of rape shall be punished by death, by imprisonment for life, or by imprisonment for not less than one nor more than 20 years." O.C.G.A. § 16-6-1(b).

Aggravated Sodomy -- "A person convicted of the offense of aggravated sodomy shall be punished by imprisonment for life or by imprisonment for not less than one nor more than 20 years." O.C.G.A. § 16-6-2(b).

In 1994, the General Assembly passed the Sentence Reform Act of 1994. 1994 Ga. Laws 1959 et seq. In that Act, the General Assembly declared that certain serious violent felonies require mandatory minimum sentences which should be served in their entirety and could not be suspended, stayed, probated, deferred, or withheld, or reduced by pardon, parole, commutation of sentence, earned time, early release, work release, leave, or other sentence-reducing measures. The Act amended the sentencing provisions contained in Title 16 for rape, O.C.G.A. § 16-6-1, and aggravated sodomy, O.C.G.A. § 16-6-2. Both of those provisions were amended to change the sentences to "not less than 10 nor more than 20 years" and a provision was added to each Code Section stating that a person convicted under those Code Sections shall "be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7." 1994 Ga. Laws 1959, 1963-64.

That same Act added a new Code Section, O.C.G.A. § 17-10-6.1, which provides the mandatory minimum sentencing provisions for the "seven deadly sins," that is, the seven crimes defined as "serious violent felonies." In paragraph (a) of that Code Section, the seven felonies are listed and references are specifically made to the Code Sections in Title 16 in which those offenses are defined. The pertinent provision for this discussion is in paragraph (b):

Notwithstanding any other provisions of law to the contrary, any person convicted of a serious violent felony as defined in paragraphs (2) through (7) [this omits murder] of subsection (a) of this Code section shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and shall not be reduced by any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles.

1994 Ga. Laws 1959, 1966; O.C.G.A. § 17-10-6.1(b). Other provisions of that Code Section refer to life sentences and death sentences for the first conviction. Official Code of Georgia Annotated § 17-10-7 sets forth the "recidivist" sentencing scheme and again refers to the previously defined serious violent felonies.

In 1996, the General Assembly, in Senate Bill 210, amended Title 16 and Title 17 in an Act entitled "Crimes and Offenses -- Rape; Aggravated Sodomy; Certain Marital Relationships not Defenses to Charges; Medical Examination Costs; Information to be Provided to Victims; Limitation on Prosecution for Forcible Rape; Statutory Rape Penalties." 1996 Ga. Laws 1115. The synopsis to that Act makes no reference to sentencing for either rape or aggravated sodomy. A reading of the bill shows that the primary purpose was to remove any defense of a marital privilege for the offenses of rape or aggravated sodomy. In Section 1 of this Act, O.C.G.A. § 16-6-1 pertaining to rape is amended. In doing so, the legislature also changed paragraph (b) of that Code Section, which sets forth the sentence for rape, so that it now reads as follows:

A person convicted of the offense of rape shall be punished by death, by imprisonment for life, or by imprisonment for not less than one nor more than 20 years.

1996 Ga. Laws 1115, 1116.

Similarly, in changing the provisions dealing with aggravated sodomy, the legislature also changed O.C.G.A. § 16-6-2(b) so that it now reads:

A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years. A person convicted of the offense of aggravated sodomy shall be punished by imprisonment for life or by imprisonment for not less than one nor more than 20 years.

Id.

The Act also contains a general repealer stating, "All laws and parts of laws in conflict with this Act are repealed." 1996 Ga. Laws 1115, 1118. The Act was approved on April 15, 1996, and, as it does not provide a separate effective date, was effective on July 1, 1996.

A review of the statutes shows that, by the amendment in 1996, the General Assembly has effectively removed rape and aggravated sodomy from the initial mandatory ten-year sentencing provisions of O.C.G.A. § 17-10-6.1. Although that

Code Section has a "notwithstanding any other provisions of the law to the contrary" statement, the 1996 amendments repeal conflicting laws, which repeals the "notwithstanding" provision insofar as it relates to rape and aggravated sodomy. Thus, as of July 1, 1996, there is no longer a mandatory minimum ten year sentencing provision for rape and aggravated sodomy and, further, the prohibition on suspension and probation does not apply to those two offenses beyond the one year term authorized by the statutes defining the crimes with respect to first offenders.

The analysis is different as to repeat offenders. As shown above, the maximum authorized sentence, both before and after July 1, 1996, is life imprisonment for both rape and aggravated sodomy (death is authorized by statute for rape, but see Coker v. State, 433 U.S. 584 (1977)). Official Code of Georgia Annotated § 17-10-7(b)(2), which addresses repeat offenders, provides that:

Any person who has been convicted of a serious violent felony in this state or who has been convicted under the laws of any other state or of the United States of a crime which if committed in this state would be a serious violent felony and who after such first conviction subsequently commits and is convicted of a serious violent felony for which such person is not sentenced to death shall be sentenced to imprisonment for life without parole. Any such sentence of life without parole shall not be suspended, stayed, probated, deferred, or withheld, and any such person sentenced pursuant to this paragraph shall not be eligible for any form of pardon, parole, or early release administered by the State Board of Pardons and Paroles or for any earned time, early release, work release, leave, or any other sentence-reducing measures under programs administered by the Department of Corrections, the effect of which would be to reduce the sentence of life imprisonment without possibility of parole, except as may be authorized by any existing or future provisions of the Constitution.

O.C.G.A. § 17-10-7(b)(2).

Thus, there is no conflict in the two provisions, and they can be harmonized and construed together. While O.C.G.A. § 16-6-1 and O.C.G.A. § 16-6-2 no longer refer to the provisions of O.C.G.A. § 17-10-7, neither are their provisions inconsistent. Official Code of Georgia Annotated § 17-10-7(a), which has not been amended, has consistently required that a repeat offender be sentenced to the maximum authorized term. State v. Willis, 218 Ga. App. 402 (1995); Hammond v. State, 139 Ga. App. 820 (1976). Life imprisonment is the maximum term under both the 1994 and 1996 versions of the rape and aggravated sodomy Code Sections.

The General Assembly is constitutionally empowered to determine, by statute, eligibility for parole. Freeman v. State, 264 Ga. 27, 29 (1994). In addition to the restrictions found in Title 17, there are other restrictions on eligibility for parole contained in Title 42. See, e.g., O.C.G.A. § 42-9-45(f)-(h). The provisions are to supplement, rather than supersede, other provisions applicable to recidivists. O.C.G.A. § 17-10-7(d). While the parole eligibility restrictions are not found in the Code Section defining the crime, the eligibility provisions in Title 17 must be given effect because nothing in the later act amending Code Sections 16-6-1 and 16-6-2 contradicts those provisions. Willis, 218 Ga. App. at 404 (applying prior O.C.G.A. § 17-10-7 to armed robbery charge).

Accordingly, it is my unofficial opinion that, by legislation at its 1996 session, the General Assembly has repealed the ten year mandatory minimum sentence for rape and aggravated sodomy formerly applicable to first offenders. The mandatory minimum sentence for these offenses is now one year. However, the provisions applicable to recidivists have not been modified; the mandatory sentence remains life without parole.